Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 48 of 2019

Date of hearing : 03.02.2020.

Date of judgment : 03.02.2020.

Mr. Kashif Hussain Shaikh, Advocate for appellant / complainant.

Mr. Nadeem Shahbaz Shar, Advocate for respondents No.2 & 3.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Irfan Ali son of Hatim Ali Khaskheli has impugned the judgment dated 25.03.2019. Respondents / accused (1) Naveed Ahmed son of Lal Bux and (2) Lal Bux son of Muhammad Soomar were tried by learned 1^st Civil Judge & Judicial Magistrate, Mirwah in Criminal Case No.115/2018 for offences under Sections 506/2, 420, 406, PPC. On the conclusion of the trial, vide judgment dated 25.03.2019, above named respondents / accused were acquitted by the trial Court.

2. Brief facts of the prosecution case, as reflected in the judgment of the trial Court, are as under:

“Precisely, the facts of the prosecution story as narrated in FIR, lodged on 30.09.2018 are that on 07.09.2015 the complainant along with his brother Noshad Ali and uncle Ranjhan were present at the otaque of the complainant meanwhile at about 1800 hours the accused Naveed Ali and Lal Bux came there and the accused Naveed Ahmed asked if the complainant gives him Rs.20000/-, he would get him employed in the Soneri Bank. The complainant on such proposal gave Rs.20000/- to the accused in presence of said witnesses and promised to pay remaining amount later on. The accused told the complainant his account Number and asked him to deposit remaining amount in his account through online process. The complainant again on 18.09.2015 and 11.09.2015 and so also on 21.09.2015 transferred fifty thousand rupees on each date hence total Rs.150000/- through online process in the account of the accused. Thereafter the accused kept the complainant on false hopes and finally on 14.09.2018, when the complainant along with his PWs approached the accused, where both the accused were present. The complainant asked the accused to return the said amount on which the accused persons took out the pistols from the folder of their salwar and pointed the pistol to complainant party and threatened them to kill if they demanded money again. The accused persons also beaten the complainant party with fists and kicks. So far the complainant lodged the F.I.R, after getting the order from the court of Honourable Sessions Judge Khairpur.”

FIR was recorded vide Crime No.171/2018 registered at P.S Mirwah, District Khairpur for offences under Sections 420, 406, 506/2, 337-A(i), 337-F(i), PPC.

3. On the conclusion of the investigation, challan was submitted against the accused under Sections 420, 406, 506/2, PPC.

4. Trial Court framed the charge against the accused at Ex.02. They did not plead guilty and claimed to be tried.

5. At the trial, prosecution examined four (04) prosecution witnesses. Thereafter, prosecution side was closed.

6. Statements of accused were recorded under Section 342, Cr.P.C at Ex.19 and 20, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in their defence and declined to give statement on oath in disproof of prosecution allegations.

7. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 25.03.2019, acquitted the above named respondents / accused.

8. Complainant being dissatisfied with the acquittal of the respondents / accused has filed this Appeal.

9. Learned counsel for the appellant / complainant mainly contended that there were minor contradictions in the evidence of the prosecution witnesses; that impugned judgment of the trial Court is based on misreading and non-reading of the evidence. Lastly, it is argued that trial Court has failed to appreciate the evidence in its true prospective and the judgment of the trial Court is perverse and the same is liable to be converted to the conviction.

10. Mr. Zulfiqar Ali Jatoi, learned Additional P.G assisted by Mr. Nadeem Shahbaz Shar, learned counsel for the respondents / accused argued that there was inordinate delay in lodging of the FIR, for which no plausible explanation has been furnished; that judgment of the trial Court is structured on sound reasons and the same is neither perverse nor arbitrary. Learned Additional P.G supported the impugned judgment of the trial Court and prayed for dismissal of the Acquittal Appeal.

11. I have carefully perused the impugned judgment and relevant record. It appears that trial Court, vide judgment dated 25.03.2019, acquitted the respondents / accused mainly for the following reasons:

“Point No.1

11. The point No.1 pertains to the allegations leveled in the contents of the FIR that in year 2015 an oral agreement was executed in between the complainant and accused party and the complainant in execution of the said agreement paid Rs.170000/- to the accused for getting the job in Sunari Bank. It is admitted fact that the alleged transaction took place in year 2015 and the FIR regard to the same cause is lodged in year 2018 thereby means that the FIR is lodged with in-ordinate delay of about three years. Though the complainant in the contents of the FIR and so also in evidence stated that the delay was caused, because of the fact that the accused party kept him at false hopes. The explanation of the delay provided by the complainant does not attract the prudent mind in any sense whereas it is admitted position that one accused is real cousin and other is uncle of the complainant. Furthermore the complainant and PWs in their cross examination the complainant has admitted the fact that the accused Naveed is not employee of any Bank. Furthermore he also admitted the fact that the accused Naveed is student of the B.Sc, therefore it is quite un-natural to believe that the complainant being the real cousin of the accused Naveed had reason to believe that accused Naveed could give the job to the complainant. Furthermore it is also admitted in the cross examination that the accused and complainant jointly owned the otaq which has been shown as place of incident by the complainant. In the cross examination the complainant stated that he did not know whether the accused has been given more share in the inherited property or not. It is quite unbelievable that a person who is beneficiary of the share of inherited property has no knowledge regard to distribution of the said property, and it implies that in order to conceal the possible actual reason of incriminating the accused he avoided to give answer to such question asked from him. It is also admitted fact that the accused and the complainant party are the family members to one another. From these facts it appears that the complainant had sufficient knowledge regard to the fact that the accused Naveed Ali has nothing to do with the Sunari Bank, and there was nothing to make him believe that accused could get job for him, therefore the allegations regard to the transaction mentioned by the complainant in the set of allegations are doubtful. Therefore the inducement and the alleged deception is not proved by the complainant and hence the section 420 PPC are not proved. The accused in the case not be convicted merely on the basis of the pay slips which are also admittedly three years old, and of the period when the accused and complainant party remained jointly in one otaq. Therefore I’m of the firm view that the complainant has failed to prove the fraud beyond reasonable doubt.

Point No.2

The point No.2 are regard to the allegations of the threats caused by the accused party to the complainant on 14.09.2018 when the complainant party approached the complainant for demanding the return of alleged money. The complainant has alleged that when they reached at the place of the accused they issued the threats to them by taking out the pistols from the folder of their salwar. The manner of the issuance of the threats are not attracting my prudent mind, because as why one sitting in his own place will keep the pistol in his folder of the salwar. Furthermore the allegations leveled against the accused are very general in nature and the complainant has not cited any independent witness to establish the threats issued by the accused. The allegations of the threats being general nature are to be proved by corroboration independent evidence. Hence the prosecution has also failed to prove the point No.2 beyond reasonable doubt.”

12. In the present case, one respondent / accused is cousin of the complainant and another is uncle of the complainant. Appellant / complainant has failed to produce agreement to show that payment was made by the complainant, to the respondent for providing him the job. It has come on record that respondent Naveed Ahmed was student. Obviously, he had no influence to provide the job to anybody. It appears from the record that it was a civil nature dispute but the same has been converted by complainant to the criminal case and element of cheating is missing in this case. Prosecution has also failed to show that threats were issued by the respondents. Trial Court has rightly appreciated the evidence and disbelieved it for the sound and valid reasons. Judgment of the trial Court is neither perverse nor arbitrary. Hon’ble Supreme Court in the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), has observed as under:

“2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses’ presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed.”

13. For the above stated reasons, while relying upon the above cited authority of the Hon’ble Supreme Court, I have no hesitation to hold that unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Consequently, Criminal Acquittal Appeal fails and the same is dismissed.

J U D G E

Abdul Basit